Arizona

Seyfarth Synopsis: 2017 saw an unprecedented number of website accessibility lawsuits filed in federal and state courts, and few courts willing to grant early motions to dismiss.

Plaintiffs were very busy in 2017 filing ADA Title III lawsuits alleging that public accommodations’ websites are not accessible to individuals with disabilities. Here is our brief recap of the 2017 website accessibility lawsuit numbers, major developments, and our thoughts for 2018.

In 2017, plaintiffs filed at least 814 federal lawsuits about allegedly inaccessible websites, including a number of putative class actions. We arrived at this number by searching for lawsuits with certain key terms and then manually reviewing the results to remove any cases that did not concern an allegedly inaccessible website. Our numbers are conservative, as it is very likely that not every website accessibility lawsuit’s description – upon which we based our search – contained our search terms. This caveat applies to all of the data set forth below.

Of the 814 federal cases, New York and Florida led the way with more than 335 and 325 cases, respectively. Surprisingly, California only had nine new website accessibility lawsuits in 2017, most likely because plaintiffs filed in state court. Federal courts in Arizona (6), Georgia (9), Illinois (10), Massachusetts (15), New Hampshire (2), Michigan (1), New Jersey (4), Ohio (8), Pennsylvania (58), Puerto Rico (1), Texas (7), and Virginia (24) also had their share of website accessibility lawsuits.

In California state courts, plaintiffs filed at least 115 website accessibility lawsuits in 2017 under the state’s non-discrimination laws. We compiled this data based on searches we performed for lawsuits by four blind plaintiffs represented by two California law firms.

In New York state courts, plaintiffs filed at least six website accessibility lawsuits in 2017. All were putative class actions.

Defendants in at least 13 federal website accessibility cases filed motions to dismiss or for summary judgment where there were no unusual circumstances like a prior court order or settlement agreement that obligated the defendant to make its website accessible. The courts denied all but two of those motions and let the cases proceed to discovery.

In one case where the defendant, Bang & Olfusen, won its motion to dismiss, the court noted that the plaintiff had failed to plead a nexus between the physical place of public accommodation and the website in question. In the other case, the court dismissed the claims made against Domino’s because requiring the defendant to comply with a set of web accessibility guidelines that are not yet law would violate due process principles. The Domino’s decision is on appeal and will be reviewed by the Ninth Circuit in 2018. Our post about these cases is here.

In the 11 cases where the federal judges refused to dismiss website accessibility claims and allowed the cases proceed to discovery, the defendants had unsuccessfully argued that the principles or due process and the doctrine of primary jurisdiction should be the basis for dismissal. One of our posts discussing some of these decisions is here.

In three decisions, the courts were open to the concept that providing telephonic access to the goods and services offered at the public accommodation may satisfy the ADA, but they refused to dismiss the cases at the outset on this basis.

The first trial in a website accessibility lawsuit took place in 2017. Florida U.S. District Judge Scola presided over this bench trial and concluded that grocer Winn Dixie had violated Title III of the ADA by having an inaccessible website. Judge Scola also found that the $250,000 cost to remediate Winn Dixie’s website was not an “undue burden” and ordered Winn Dixie to make its website conform with the Web Content Accessibility Guidelines 2.0 AA (WCAG 2.0 AA).

Three defendants were able to dismiss website access lawsuits early because they had already entered into consent decree or settlement agreements with previous plaintiffs which required them to make their websites conform to the WCAG 2.0 within a specified amount of time. That said, not all courts agree that a prior settlement — as opposed to a binding judgment or court order — can be the basis for a dismissal.

The Department of Justice’s (DOJ) rulemaking to create new website accessibility regulations is now officially dead, as we recently blogged. The lack of clear rules will lead to more litigation and inconsistent judicially-made law. In fact, it appears that the DOJ will not be issuing any new regulations under Title III of the ADA about any subject, according to the agency’s December 26 announcement in the Federal Register repealing all pending ADA Title III rulemakings.

What’s in store for 2018? If the Ninth Circuit upholds the Domino’s district court’s dismissal on due process grounds, the number of California website accessibility lawsuits in federal court may go down dramatically. Even if that occurs, we see no end to the website accessibility lawsuit surge elsewhere and expect that new plaintiffs’ firms will continue to enter the scene. While the current administration’s DOJ is not likely to push the website accessibility agenda, its inaction will not stop the lawsuits. Only an amendment to the ADA can do that, which we believe is highly unlikely. Thus, the best risk mitigation effort for covered entities is still to make their websites accessible as soon as possible, with the assistance of ADA Title III legal counsel experienced in website accessibility issues and reputable digital accessibility consultants.

Seyfarth Synopsis: The number of federal lawsuits alleging inaccessible websites continues to increase, along with the number of law firms filing them. Businesses remain well-advised to seek advice from counsel experienced in website accessibility to manage risk.

Different year, same news: Website accessibility lawsuits show no signs of slowing down. In fact, with the DOJ’s recent placement of website regulations on the “inactive list”, litigation will likely only continue. As we have written about extensively, most recently here, court orders are issuing more and more from courts across the country, slowly creating a body of jurisprudence around this issue; though the rulings differ vastly by court and even judge.

The number of website accessibility lawsuits filed in federal court since the beginning of 2015 has surged to at least 751 as of August 15, 2017, with at least 432 of those filed in just the first eight and a half months of 2017—well over the 262 lawsuits that were filed in all of 2015 and 2016. We say “at least” because there is no easy way to capture every website accessibility lawsuit filed in federal court. Thus, the actual numbers are likely higher than we can report with certainty. Our numbers also do not include the many cases filed in state courts nor demand letters that resolve without ever turning into lawsuits.

Number of federal website accessibility lawsuits by year from January 2015 to August 15, 2017: 2015 (57), 2016 (262), 2017 (432). There are at least this many lawsuits.

Retailers remain the most popular targets, followed by restaurant and hospitality companies.

Number of federal website lawsuits by industry from January 2015 to August 15, 2017: Academic (7), Entertainment (27), Financial (17), Hospitality (57), Medical (42), Personal Services (18), Restaurant (186), Retail (353), Vehicle Manufacturer (13), Other (22). There are at least this many lawsuits.

Although California continues to have the highest number of federal ADA title III lawsuits generally, Florida (385), New York (170) and Pennsylvania (85) have overtaken California with respect to the number of federal website accessibility lawsuits.

Number of states with the most website lawsuits in federal court as of August 15, 2017: Arizona (7), California (65), Florida (385), Illinois (5), Massachusetts (17), New York (170), Ohio (4), Pennsylvania (85), Texas (4), Washington (5). There are at least this many lawsuits.

These lawsuits are a significant portion of the increase in total ADA Title III lawsuits filed in federal courts this year, which, as of April 2017, was already over 2600 filings in 2017—an 18% increase over the number of federal cases filed in the same time period in 2016.

Seyfarth Synopsis: In an apparent effort to stop one plaintiff’s lawsuit spree, the Nevada Attorney General moves to intervene in a federal ADA Title III lawsuit arguing that the plaintiff failed to provide notice to the state agency responsible for enforcing Nevada’s antidiscrimination law before filing suit.

On Wednesday, August 9, the Nevada Attorney General filed a motion to intervene in an ADA Title III lawsuit filed by serial plaintiff Kevin Zimmerman who (according the motion) had sued more than 275 Nevada businesses in federal courts in the past seven months.

The motion to intervene argues that Title III of the ADA requires private plaintiffs to – before filing in federal court – provide 30 days’ notice to the state agency responsible for enforcing state laws that prohibit the same type of discriminatory conduct at issue in the federal suit. The Nevada Attorney General explained that the notice gives the state enforcement agencies an opportunity to conduct their own investigation and take action. The brief notes that there is an exception to this notice requirement where a plaintiff has actual notice that the defendant does not intend to comply with the law, but Mr. Zimmerman did not plead that he had actual notice of any such intent. This is an interesting argument that could be a useful defense strategy in some ADA Title III cases, though it has been rejected as the basis for a dispositive ruling by the Ninth Circuit in Botosan v. Paul McNally Realty.

The Nevada Attorney General’s motion to intervene is not the first time that a state attorney general has stepped in to thwart the actions of serial plaintiffs filing accessibility lawsuits. Last year, the Arizona Attorney General intervened in and secured the dismissal of 1700 cases filed against Arizona businesses under the Arizonians with Disabilities Act (not the ADA), as we reported here.

Stay tuned for more developments in Nevada – a state that only had 6 ADA Title III lawsuits in all of 2016.

Seyfarth Synopsis: A state court has granted the Arizona Attorney General’s Motion To Dismiss approximately 1,700 Arizona access lawsuits on grounds that the organizational and individual plaintiffs lacked standing to sue.

As we previously reported here, the Arizona Attorney General responded to a surge of approximately 1,700 access suits filed in that state’s courts by moving to consolidate, to intervene in, and to dismiss all of such actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler. According to a recent communication from the Arizona AG’s office describing his court appearance on February 17, 2017, the Arizona trial court judge on that date orally granted the AG’s motion to dismiss virtually all of the consolidated cases with prejudice and directed the AG to submit a proposed form of judgment.

There currently is no written decision laying out the Court’s reasoning for its decision, so it is not clear which of the AG’s arguments persuaded the court to issue this decision. The AG’s Motion to Dismiss challenged both the individual’s (Ritzenthaler’s) and AIDF’s standing to bring claims under what the AG described as the “rigorous” standing requirements of Arizona law. The AG presented several arguments about how the Plaintiffs failed to meet these requirements. First, the AG argued that the Plaintiffs failed to allege that they patronized the businesses that they sued. Second, the AG asserted that the Plaintiffs failed to allege an actual barrier to their access. The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’” The AG then stated that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.” Third, the AG asserted that Plaintiffs’ claims were insufficient because they failed to sufficiently allege denial of access based upon their particular, identified disability. Fourth, the AG argued that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint. Fifth, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief: That the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

If the court issues a written opinion explaining the basis for his ruling, we will update you.

In an interesting peripheral note, the Arizona Attorney General’s office has notified affected parties that the Court also stated that it would consider applications for attorneys’ fees and costs following its ruling, and noted that, should any affected party be interested in filing a fee petition, it should keep in mind that any fee request “must be in sufficient detail to enable the court to assess the reasonableness of the time incurred.” Schweiger v. China Doll Rest., Inc., 138 Ariz. 183, 188 (App. 1983). Based upon the AG’s comments, this portion of the ruling apparently extends beyond the AG’s own attorneys’ fees and costs, potentially including any defendant who hired counsel to defend against Plaintiffs’ 1,700 dismissed actions prior to entry of the stay.

Seyfarth Synopsis: The number of federal ADA Title III lawsuits continue to surge, fueled by new plaintiffs, new plaintiffs’ lawyers, and website accessibility claims.

Our 2016 lawsuit count is complete, and the results no less remarkable than prior years. In 2016, 6,601 ADA Title III lawsuits were filed in federal court — 1,812 more than in 2015. This 37 percent increase continues the upward trend in the number of filings, which we’ve been tracking since 2013. In 2015, there were 8 percent more Title III lawsuits filed than in 2014.

California and Florida continue to be hotbeds of litigation, with 2,468 and 1,663 lawsuits, respectively. New York, Arizona, and Texas hold distant third, fourth, and fifth positions. Here are the numbers for the top ten states:

The number of cases in Utah jumped from only one in 2015 to 124 in 2016 — due almost entirely to plaintiff Carolyn Ford who filed 105 of those suits. Other states that experienced significant increases include Arizona, California, Colorado, and Georgia. Alaska, North Dakota, South Dakota, and Wyoming are the only states that had no ADA Title III lawsuits at all filed in 2016.

What is driving these numbers? While historically there had been a few predictable plaintiffs and attorneys filing Title III lawsuits, over the past year we’ve seen quite a few newcomers filing (the most common) physical accessibility lawsuits, as well as a recent proliferation of plaintiffs and attorneys filing website accessibility lawsuits. There were more than 250 lawsuits filed in 2016 about allegedly inaccessible websites and/or mobile apps. This number does not include the hundreds, if not thousands, of demand letters plaintiffs sent to businesses asserting website accessibility claims.

Plaintiffs who filed more than a hundred lawsuits in 2016 were Theresa Brooke (274), Scott Johnson (258), Howard Cohan (251), Lional Dalton (184), Jon Deutsch (175), Advocates for Individuals with Disabilities LLC/Advocates for Individuals with Disabilities Foundation Incorporated, Advocates for American Disabled Individuals LLC (165), Chris Langer (163), Santiago Abreu (152), Damien Moseley (141), Patricia Kennedy (138), Doug Longhini (114), Andres Gomez (113), and Carolyn Ford (105). We expect to see fewer suits from Howard Cohan who was the subject of a news expose in late 2016 which showed videos here and here of him not appearing to be limited in his mobility. Mr. Cohan has filed many hundreds of suits over the years concerning alleged barriers that would affect people who are limited in their mobility.

In 2016, lawmakers in both the Senate and House proposed legislation called the ADA Education and Reform Act designed to, among other things, reduce the number of lawsuits filed by serial plaintiffs by requiring them to give businesses notice of the alleged violations and an opportunity to address them before filing suit. Those efforts stalled but may gain new momentum with a new administration that is sympathetic to the plight of small businesses and hostile to federal regulation. There were also state legislative efforts, which will no doubt continue in 2017.

We will, as always, continue to keep tracking lawsuit filings, legislative efforts, and other breaking developments and keep you up to date — as the Title III trend shows no signs of cooling down in 2017.

Seyfarth Synopsis: A disability advocacy group behind approximately 1,700 Arizona access lawsuits breaks new ground by filing suit against the Arizona Attorney General, in an unusual counter-attack to the AG’s motion to dismiss those cases for lack of standing.

As we previously reported here, the Arizona Attorney General (“AG”) responded to a surge of access suits filed in that state’s courts by moving to consolidate and to intervene in all actions initiated by self-styled disability rights advocacy groups, including Advocates for Individuals With Disabilities Foundation (“AIDF”) and David Ritzenthaler. The state court granted the AG’s motions on September 23. Soon thereafter the AG filed a Motion to Dismiss and For Judgment on the Pleadings.

In a further twist on this story, AIDF and Ritzenthaler have now sued AG Mark Brnovich in his official capacity for mandamus relief against the AG and for attorneys’ fees and costs. Specifically, the Plaintiffs seek an order that the AG must initiate an investigation into the violations that have been alleged in approximately 9,000 complaints allegedly filed with the AG’s office. Plaintiffs argue that the AG is required to investigate such complaints under state law, and has failed to do so. Plaintiff further alleges that non-compliance with the state’s accessibility statute is widespread, apparently citing an AIDF press release.

Whether or not this tactic is an effective litigation strategy remains to be seen. The AG’s pending Motion to Dismiss challenges both the individual’s (Ritzenthaler’s) and the organizations’ standing to bring their claims under Arizona law. According to the AG, Arizona has a “rigorous” standing requirement, which the plaintiffs in the consolidated matters fail to meet for several reasons. First, they fail to allege that they patronized or attempted to patronize the defendants’ businesses. Second, the AG argues that the plaintiffs fail to allege an actual barrier to their access. The AG noted that the state accessibility law violations identified in the consolidated complaints concern accessible parking signage, but that plaintiffs “assume that every instance of non-compliance with ADA or AZDA regulation, no matter how minor, represents a ‘barrier.’” The AG then states that “not all instances of ADA or AZDA non-compliance are barriers, and not all barriers deny access to all persons with disabilities.” Third, the AG asserts that plaintiffs fail to sufficiently allege standing because they did not allege denial of access based upon an identified disability. In other words, the plaintiffs do not link an identified instance of non-compliance to their particular disability. Fourth, the AG argues that Arizona does not recognize a “deterrence” theory of standing, which conceivably might overcome other failures in the complaint. Finally, the AG argued that the consolidated plaintiffs fail to allege the additional standing requirements for injunctive relief, i.e., that the plaintiffs provided prior notice or an opportunity to remediate alleged violations and allege an intent to patronize the businesses in the future.

The AG argues that the various Plaintiffs in these consolidated actions should not be given leave to amend such deficiencies in the pleadings, due to a “documented history of bad faith, abusive tactics, and dilatory motives.” To support this assertion, the AG notes that plaintiffs have filed over 1,700 deficient complaints in 2016, and have “extracted” about $1.2 million from those lawsuits. The AG also contends that the plaintiffs’ proposed “Universal Amended Complaint” still fails to adequately plead standing, further demonstrating undue delay. It also, perhaps, demonstrates futility of amendment under these circumstances.

These, first-of-their-kind, cross actions between an enforcement agency and a serial plaintiff may continue to provide additional data and insight into assertions of lawsuit abuse in the disability access context. We will continue to monitor these actions and keep posting on developments.

Seyfarth Synopsis: In yet another effort to reduce ADA lawsuits, California Governor Jerry Brown recently signed into law – effective immediately – legislation to encourage tenants and landlords to acknowledge and address any accessibility issues during lease negotiations.

On September 16, 2016, California Governor Jerry Brown signed into law Assembly Bill 2093 – the second new disability access reform law of the year – in the state’s continuing effort to address the huge number of accessibility lawsuits. This bill, which became effective immediately, seeks to ensure that prospective commercial real estate tenants are notified of known construction-related accessibility violations during the course of lease negotiations so that owners and tenants have the opportunity to decide how any violations will be addressed and avoid future ADA lawsuits. AB 2093 is similar to a piece of California’s last large-scale attempt at disability access reform, SB 1186 of 2012, which required a commercial property owner to state on a lease form or rental agreement executed on or after July 1, 2013, whether the property being leased or rented has undergone inspection by a certified access specialist.

AB 2093 takes the 2012 legislation one step further and requires commercial property owners to state on every lease or rental agreement executed after January 1, 2017, whether the property being leased or rented has been inspected by a California Certified Access Specialist (CASp) for compliance with construction-related accessibility standards. If it has, and there have been no alterations affecting accessibility since, the owner must provide the prospective tenant a copy of the CASp report at least 48 hours prior to the execution of the lease or rental agreement. Any necessary repairs are deemed the responsibility of the owner unless the landlord and tenant contractually agree otherwise. If the CASp report indicates the property meets applicable accessibility standards, the owner must provide the report and CASp certificate to the tenant within seven days of the execution of the lease or rental agreement.

If the property has not been CASp-inspected, the owner must include specific language in the lease or rental agreement notifying the prospective tenant that: (a) a CASp can inspect the property and determine whether the property complies with construction-related accessibility standards; (b) a CASp inspection is not required by law; (c) the owner may not prohibit the tenant from obtaining a CASp inspection of the property; and (d) the owner and tenant shall mutually agree on the terms of the CASp inspection, including time, payment of fees, and allocation of responsibility for making any required corrections to accessibility violations identified in the CASp report.

Earlier this year, the Governor signed into law SB 269, which largely sought provide small business owners with some relief and protect businesses against liability for certain “technical” violations. Both bills come on the heels of 2015’s AB 1521, which imposed procedural and substantive prerequisites to a “high-frequency litigant” filing a lawsuit in California state courts.

AB 2093 is intended to raise the issue of the existence of possible violations of the ADA and California accessibility laws during the course of commercial property lease negotiations to encourage business owners to make any necessary repairs in a proactive manner, rather than making repairs as a reaction to a future ADA lawsuit from a plaintiff seeking the $4,000 per violation bounty offered by California’s disability access laws. Only time will tell if this latest effort at reform will make any difference in mitigating the huge, and growing number of disability access lawsuits in California (and across the country). For those of you closely following state government attempts to intervene and quell the proliferation of disability access lawsuits, read about the Arizona Attorney General’s recent action here.

Seyfarth Synopsis: The number of access lawsuits has surged in both Arizona state and federal courts, prompting an unprecedented intervention by the Arizona Attorney General.

By our count, nearly 300 ADA Title III lawsuits have been filed in federal court in Arizona this year to date. This number represents a dramatic increase from 2015 when only 207 lawsuits were filed for the entire year. In 2013 and 2014, there were only 20 and 8 of such lawsuits, respectively.

Even more astonishing is the number of cases AIDF and AID/AADI have filed in Arizona state court under the Arizonians with Disabilities Act (AzADA) since January 2015. The AzADA is similar to the federal ADA but allows plaintiffs to recover compensatory damages. Under the ADA, prevailing private plaintiffs can only obtain injunctive relief and attorneys’ fees and costs.

The number of lawsuits filed by AIDF, AID, and AADI in Arizona state court (all in Maricopa County) in 2015 and 2016, according to our own research, are:

AID/AADI: 503 cases

AIDF: 1121 cases

In total, these plaintiffs have filed 1,624 cases since the beginning of 2015. Compare that to the 584 suits filed in Arizona federal courts since the beginning of 2015. Then compare that to the data we’ve collected on lawsuits filed in other states and nationwide.

Apparently alarmed by the number of suits flooding the Arizona court system, the Arizona Attorney General has filed a motion asking the Arizona state court in Maricopa County to consolidate all of the pending cases filed by AADI and to allow his intervention to stop what he calls a “systemic abuse of the judicial system.” The motion provides two grounds for intervention. First, it states that these lawsuits “imperils the State enforcement regime established by the Legislature” by signaling to other plaintiffs that it is more profitable to file these private suits than to utilize the state’s investigation and enforcement regime created by the AzADA which provides opportunities for a pre-litigation resolution. Second, the State of Arizona has a strong interest in how the courts apply and interpret the AzADA’s statutory scheme.

Though outcry over the years over ADA lawsuit abuse has been consistent, as well as multiple legislative attempts at reform with little meaningful effect, we are not aware of any other instance when an enforcement agency has stepped in to address the actions of a serial plaintiff. We will keep you updated on the developments.

In honor of the 26th anniversary of the ADA, we are sharing our mid-year count of ADA Title III lawsuits for 2016 and it’s newsworthy: The number of lawsuits filed in federal court is already at 3,435, up 63% from last year’s mid-year number of 2,114. If the pace continues, the 2016 total may top 7,000. To put the numbers into perspective, more lawsuits were filed in the past six months than were filed in all of 2013 when there were a mere 2,722 lawsuits. The three states with most lawsuits continue to be California, Florida, and New York, but there is a shake-up in the fourth position. Arizona, with 230 lawsuits, has beaten out Texas. Based on our own practice, most lawsuits continue to be about physical access barriers but there has been a steady increase in lawsuits about websites that are allegedly not accessible to individuals with disabilities. We will be provide more analysis at the end of 2016, which promises to be another record-breaking year.

Florida is one of the top states for ADA Title III filings. As we previously reported, in 2015, California, Florida, New York, Texas, and Arizona had 3,847 ADA Title III lawsuits. This accounts for 80% of the lawsuits filed nationwide. Businesses are complaining, and the news media is paying attention. Miami Local 10 News, an ABC affiliate, reported on the surge of ADA Title III lawsuits nationwide and three local small businesses that were sued by a serial plaintiff who filed more than a hundred and thirty lawsuits in 2015. Seyfarth’s ADA Title III Team Leader, Minh Vu, provided legal commentary for the story in an interview with reporter Christina Vazquez.

ABOUT SEYFARTH’S ADA TITLE III TEAM

Seyfarth’s ADA Title III team consists of attorneys with extensive experience in ADA Title III litigation located in many offices across the United States, including California where plaintiffs are most active. With additional litigators admitted to practice in virtually every jurisdiction in the country, we have the resources to defend our clients against lawsuits and investigations on a nationwide basis and provide consistent and efficient service in national engagements. We have successfully defended against or resolved hundreds of lawsuits brought under Title III of the ADA and applicable state laws.